Colley v Council for Licensed Conveyancers
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE SIMON,Mr. Justice Simon |
| Judgment Date | 25 January 2005 |
| Neutral Citation | [2005] EWHC 498 (Ch) |
| Docket Number | No: HQ02X03491 |
| Court | Chancery Division |
| Date | 25 January 2005 |
[2005] EWHC 498 (Ch)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Simon
No: HQ02X03491
MR. P. NICHOLLS (instructed by Reynolds Porter Chamberlain) appeared on behalf of the Applicant/Defendant.
THE RESPONDENT/CLAIMANT appeared in Person.
(As Approved by the Judge)
This is an application by the defendant, the CLC, to strike out an amended particulars of claim served by the claimant, Mr. Colley, on the 20 th April 2004, and for an extended civil restraint order pursuant to CPR Part 3.
Before turning to the application it is necessary to deal with a preliminary issue which the claimant has raised; and, in order to do so, it is necessary to refer to the order of Mr. Justice Gray dated the 6 th April 2004. That order provided:
"1. The Claimant must file and serve any amended particulars of claim on which he wishes to rely by no later than 4 p.m. on Tuesday, 28 th April 2004, in default of which this action shall be struck out.
2. Save for the purposes of complying with or enforcing the order, all further steps herein be stayed until the Claimant has paid to the Defendant the sum of �24,000, being the costs ordered by the order of Mr. Justice Gray dated
1 st April 2003, the order of Lord Justice May dated 24 th July 2003, and the order of Mr. Justice Gray dated 10 th October 2003."
On the 18 th April 2004 the claimant served an amended particulars of claim which the CLC contend should be struck out. By an application notice dated the 28 th September 2003 the CLC applied for an order striking out the amended particulars. The claimant raises three preliminary objections to this course: first, the order of the 6 th April stayed the proceedings and therefore this application cannot proceed; secondly, in any event there was no application within the application notice seeking to lift the stay; and, thirdly, without the application to lift the stay and for so long as the stay is in place the CLC's application to dismiss is itself an abuse of process. In summary, what the claimant submits is that once a stay is in force it binds both sides and the court may not permit an application of this type to strike out a claim.
In support of this contention he relied on a passage in the speech of Lord Oliver from the Privy Council case, Minister of Foreign Affairs, Trade & Industry v. Vehicles & Supplies Ltd. [1991] 1 W.L.R.550, which is set out conveniently in the White Book, volume 2, p.2160, para.9A-165. At p.556 of the report Lord Oliver said this:
"A stay of proceedings is an order which puts a stop to further conduct of proceedings in court or before a tribunal at the stage which they have reached, the object being to avoid the hearing or a trial taking place."
While the stay endures:
"The relevant court or tribunal cannot � effectively entertain any further proceedings except for the purposes of lifting the stay."
In general:
"Anything done prior to the lifting of a stay will be ineffective although such an order would not, if imposed to enforce the performance of a condition by a plaintiff (i.e. provide security for costs), prevent a defendant from applying to dismiss the action if the condition is not fulfilled."
The passage cited expressly did not form the basis for the decision in that case. Nevertheless, Mr. Nicholls did not seek to persuade me that the law is not as stated in that passage, and I proceed on the basis that it is.
I have concluded that the CLC's applications are not precluded by the order for a stay of proceedings. The terms of the order of Mr. Justice Gray envisaged the service of an amended particulars of claim by the 20 th April 2004 and that, in default of such amendment to the particulars of claim, the action would be struck out. That was an obligation of the claimant which was specifically not stayed. If the CLC was entitled to strike out the action for disobedience of the court order, as it was (see para.1 of the order), I can see no reason why it should not be entitled to strike out the amended particulars of claim if it was served but served in a form which was substantially defective, for example, if it failed to disclose any cause of action. Mr. Justice Gray's order of the 6 th April 2004 provided that the stay was to take effect "save for the purposes of complying with or enforcing the order".
Mr. Nicholls submits that is precisely what the CLC is doing. It is enforcing an order that proper particulars of the claim be served by the claimant within the meaning of the words of Lord Oliver.
It follows that I find that the CLC was not required to apply for the stay to be lifted and that is sufficient to dispose of the claimant's preliminary issue. However, if
I had been persuaded that the CLC needed to apply to lift the stay, I would have granted them leave in the exercise of my discretion. Although the application and the evidence were served in September 2004 there was no indication that the claimant was taking a point on the stay until he made the application for the determination of the preliminary issue on the morning of the hearing. No notice of that preliminary issue had been given in advance. That way of proceeding was, in my judgment, to place the CLC illegitimately at a tactical disadvantage. If they had been notified of the point in proper time they would have been able to consider whether to apply for the stay to be lifted for the limited purposes of striking out the particulars. This was a course that had been specifically envisaged in Mr. Matthews' witness statement in support of the application at para.22. When notified of the point they acted promptly to apply to lift the stay and issued an application notice. No conceivable prejudice would have been suffered by the claimant by such a course. There was, as Mr. Nicholls put it, no free standing issue. The stay would only have been lifted for the purposes of the strike out, the basis of which the claimant was fully aware.
I turn then to the merits of the strike out, and to do so it is necessary to turn to some of the background of the application. Mr. Colley was a licensed conveyancer and as such was subject to regulation by the CLC. In 1999 the Investigating Committee of the CLC ruled that the claimant had provided inadequate professional services in relation to what was described as "the Barker matter", and in June 2002 referred the matter to the Discipline and Appeals Committee, or DAC, of the CLC. In August 2002 the DAC also found that he had committed disciplinary offences in relation to another complainant, the Dixon matter. The Dixon matter is a complaint by solicitors named Dixon Stewart Webb on behalf of their client, Mr. and Mrs. Phippen. The DAC ordered that Mr. Colley be suspended for six months.
The claimant challenged both decisions by means of judicial review. The matter initially came before Mr. Justice Owen, who dismissed the application on the basis that the appropriate remedy was a statutory appeal under s.26(7) of the Administration of Justice Act 1985, and therefore the decisions could not be challenged by judicial review. Mr. Colley then sought permission to appeal pursuant to s.26(7) of the 1985 Act. That matter was considered by Mr. Justice Blofeld, who granted limited permission to appeal in relation to the Barker matter and refused permission to appeal in relation to the Dixon matter. The claimant appealed that order on the grounds that Mr. Justice Blofeld had proceeded on the mistaken assumption that permission was required when under s.26(7) of the Act, whereas he had an unfettered right to appeal. The application for leave to appeal was refused by the single Lord Justice and on the 25 th June 2001 was renewed before the full court, Dame Elizabeth Butler-Sloss and Lord Justice Keene. That hearing figures in the particulars of claim in the present action. In the event, the application was adjourned so that the case could be heard by a full court comprising of three members of the Court of Appeal. That hearing took place before the Vice-Chancellor, Sir Andrew Morritt and Lord Justices May and Dyson on the 27 th June 2001, with judgment being delivered on the 17 th July. The Court of Appeal held that the claimant had an unrestricted right of appeal to the Divisional Court and did not need permission.
On the 23 rd November 2001 the decision of the investigating committee in Barker was set aside by the Divisional Court, Lord Justice Laws and Mr. Justice Crane, because, at the time it reached its decision, it did not have the power to make the findings it did.
On the 23 rd January 2002 the CLC offered to concede the appeal in relation to the Dixon matter on the basis that the decision of the DAC be set aside and the matter be remitted to a properly constituted DAC.
On the 28 th January at the hearing before the Divisional Court, Lord Justice Auld and Mr. Justice Goldring, this offer was accepted by the claimant and the Divisional Court made an order to that effect. Although there had been hearings before the DAC on various occasions there does not yet appear to have been a decision.
It follows from this outline of the facts that by the end of January 2002 the claimant had achieved a considerable measure of success. All adverse decisions of the CLC had been set aside and a new hearing fixed by the DAC in relation to the Dixon matter.
In October 2002 the claimant issued a claim form against the CLC seeking substantial damages on a number of bases, in particular for misfeasance in public office, breach of his human rights and for...
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